Overcoming Necessity : Emergency, Constraint, and the Meanings of American Constitutionalism

Using emergency as a cause for action ultimately leads to an almost unnoticed evolution in the political understanding of presidential powers. The Constitution of the United States, however, was designed to function under “states of exception,” most notably through the separation of powers, and provides ample internal checks on emergency actions taken under claims of necessity. This book urges the United States Congress, the courts, and other bodies to put those checks into practice. The book analyzes the constitutional norms that fail to guide and constrain the choice of action through an analysis of what is appropriate. It explores how constitutional norms always apply as unavoidably normative constitutional questions during an emergency. It explains how necessity can produce dictatorship, because the people are willing to allow whatever it takes to solve their immediate needs, and it looks into the theory that a president might suspend the constitutional order in order to post hoc political accountability. It then talks about necessity that enables presidential discretion, and responds to arguments regarding the president having all the power that necessity confers. The book considers the scope of implied presidential power, arguing that even if there is power to do what is necessary, it is still constrained by conceptions of what is proper. It emphasizes how deference to the president is inconsistent with a constitutional tradition that preciously guards decisions about liberty. The book concludes with a review of the commitment to constitutional values as a constitutive feature of political identity in American constitutionalism. "This book is rooted in the post-9/11 debate over the scope of the president's authority to react to perceived emergency. One side argues for unbounded and unilateral executive authority, and the other a recommitment to rights, subject to circumstantial limits. Almost all sides converge on some variation of the idea that during emergencies the laws must give way (they just disagree over when and how they give way), that the constitution is not a 'suicide pact,' and that executive officials must be given leeway to act against the law, even if subject to post-hoc accountability. None of these arguments adequately address how they rely on prioritizing necessity in constitutional thought. The author contends that legal actors and scholars often misunderstand the role that necessity plays within liberal constitutionalism, thinking that it provides an excuse for jettisoning commitments to constitutional principles and values and therefore justifying legally unconstrained government action"-- Provided by the publisher An argument for why emergencies are no excuse for extralegal action by presidents

Using emergency as a cause for action ultimately leads to an almost unnoticed evolution in the political understanding of presidential powers. The Constitution, however, was designed to function under “states of exception,” most notably through the separation of powers, and provides ample internal checks on emergency actions taken under claims of necessity. Thomas Crocker urges Congress, the courts, and other bodies to put those checks into practice.